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Supreme CourtDismissedPetition (Application) 32 (E036) of 2022 & Petition 35 (E038) & 36 (E039) of 2022 (Consolidated)

Sirikwa Squatters Group v Fanikiwa Limited & 20 others

Supreme Court of Kenya
31 May 2024
3,733 words in judgment
View original judgmentRead on Kenya LawDownload the judgment (PDF) Watch case
AI-assisted case brief
·~15 min to read original · ~4 min brief

The bottom line

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Supreme Court dismissed a review bid, ruling it was a disguised appeal with no jurisdiction.

What this practically means

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The Supreme Court rejected Sirikwa Squatters Group's request to review a previous judgment. The court found the group was trying to appeal again, which is not allowed. It also removed some documents because they were filed only online, not physically. Late responses from other parties were allowed to avoid unfairness. The applicant must pay costs to several respondents.

Executive summary

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This ruling concerns an application by Sirikwa Squatters Group seeking review of the Supreme Court's judgment of 15th December 2023, which had allowed an appeal by Fanikiwa and others, set aside the Environment and Land Court and Court of Appeal judgments, and permanently restrained Sirikwa from interfering with the suit properties. The applicant argued that the Court lacked jurisdiction, considered factual matters beyond its mandate, and that the judgment was obtained through fraud and misrepresentation. The Supreme Court dismissed the application, holding that the grounds raised did not fall within the limited review jurisdiction under Section 21A of the Supreme Court Act. The Court found that the application was essentially an appeal disguised as a review, and it has no jurisdiction to sit on appeal over its own decisions. The Court also addressed procedural issues: it expunged the 5th-9th respondents' documents for failure to file physical copies as required by Rule 12(1) of the Supreme Court Rules, 2020, but exercised its discretion to consider late-filed responses from other respondents in the interests of justice. The Court awarded costs to the 1st-4th, 12th, 13th, 14th, 15th, 18th, and 21st respondents, but not to the 5th-9th respondents whose documents were expunged.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the applicant has established a basis for the review of this Court’s decision.

Key legal issues

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01

Whether the applicant established grounds for review under Section 21A of the Supreme Court Act.

Holding

The applicant failed to establish any of the grounds under Section 21A; the application was an appeal disguised as a review.

Reasoning

The court examined each ground raised by the applicant: jurisdiction, consideration of facts, fraud, and condemnation of President Moi unheard. It found that the jurisdiction issue had already been determined in the judgment; consideration of facts was necessary to resolve the dispute; fraud was not proved as the affidavit of R.J. Simiyu was before the lower courts; and the other grounds were purely appeal grounds. The court concluded that the application did not fall within the review parameters and was an attempt to have the court reconsider the entire judgment, which it has no jurisdiction to do.

02

Whether the 5th-9th respondents' documents were properly filed.

Holding

The documents were not properly filed because physical copies were not filed as required by Rule 12(1) of the Supreme Court Rules, 2020, and were expunged from the record.

Reasoning

The court noted that despite filing electronically, the 5th-9th respondents did not file physical copies, running afoul of Rule 12(1). Citing Kenya Hotel Properties Limited v Attorney General and Sonko v Clerk, County Assembly of Nairobi City, the court held that failure to effect both physical and electronic filing means the document is not properly filed. The documents were expunged, but the court noted no prejudice as their submissions were similar to those of the 1st-4th respondents.

03

Whether the 2nd respondent/2nd appellant, 5th-9th respondents, 13th and 21st respondents filed their responses within time.

Holding

The responses were filed out of time, but the court exercised its discretion to consider them in the interests of justice.

Reasoning

The court applied Section 57 of the Interpretation and General Provisions Act to compute time, finding that 14 days from 28th December 2023 ended on 18th January 2024. The respondents filed after that date. However, citing the Jane Cheperenger Case, the court noted that late filing is not patently incurable and, given that the applicant had responded to most submissions and no prejudice was shown, the court considered the responses.

Legal principles established

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  • The Supreme Court cannot sit on appeal over its own decisions.
  • A review is not an appeal; it is limited to specific grounds like fraud or discovery of new evidence.
  • Both physical and electronic copies must be filed under Supreme Court Rules, 2020.
  • Late filing may be excused if no prejudice is shown and in the interests of justice.
  • Fraud allegations must be proved with concrete evidence, not mere assertions.

Court orders

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  1. 1.The application dated 20th December 2023 is hereby dismissed.
  2. 2.The applicant shall bear the costs of the application which shall be payable to the 1st-4th respondents/appellants, the 12th, 13th, 14th, 15th, 18th and 21st respondents.

The bench

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One judgment of the whole court — no separate or dissenting opinions.

Martha Karambu Koome
M. K. KoomeCJ
Currently serving
majority

Wrote the judgment

Philomena Mbete Mwilu
P. M. MwiluDCJ
Currently serving
majority
majority
Smokin Charles Wanjala
S. C. WanjalaSCJ
Currently serving
majority
Njoki Susanna Ndungu
Njoki NdunguSCJ
Currently serving
majority
Isaac Lenaola
I. LenaolaSCJ
Currently serving
majority
William Ouko
W. OukoSCJ
Currently serving
majority
On appeal from
Supreme Court of Kenya
SC Petition No. E001 of 2023 (consolidated)
Jurisdiction invoked
Section 21A of the Supreme Court Act, Cap 9B

Relief refused

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Setting aside or reviewing the judgment of 15th December 2023

The application did not meet the grounds for review under Section 21A of the Supreme Court Act; it was an appeal disguised as a review.

Reinstatement of the Environment and Land Court and Court of Appeal judgments

The prayer for review having failed, it does not suffice to consider the other prayers.

Permanent injunction against Fanikiwa

Same as above.

Costs

The applicant shall bear the costs of the application which shall be payable to the 1st-4th respondents/appellants, the 12th, 13th, 14th, 15th, 18th and 21st respondents.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The application dated 20th December 2023 is hereby dismissed.
p. 8 Final orders
The applicant shall bear the costs of the application which shall be payable to the 1st-4th respondents/appellants, the 12th, 13th, 14th, 15th, 18th and 21st respondents.
p. 8 Costs order
Looking at the issues raised by the applicant, we are unable to see how any of the grounds and allegations fall within the parameters of our jurisdiction of review. At best, the notice of motion is an appeal, disguised as an application for review.
p. 8 Nature of application
In Fredrick Otieno Outa v Jared Odoyo Okello & 3 Others, SC Petition No. 6 of 2014; [2017] eKLR, this Court held that it does not have the jurisdiction to sit on appeal over its own decisions.
p. 8 Jurisdiction to review
the only regime of law that govern proceedings before the Court are, the Constitution, Supreme Court Act, the Supreme Court Rules and any Practice Directions.
p. 6 Applicable law

Key timeline

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2023-12-15
Supreme Court delivered judgment allowing appeal by Fanikiwa and others.
2023-12-20
Sirikwa Squatters Group filed an application for review of the judgment.
2024
Supreme Court dismissed the review application, ruling it was a disguised appeal.

Practical implications

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For lawyers

Strict review vs appeal limits

The ruling reinforces that review applications under Section 21A of the Supreme Court Act cannot be used to re-litigate the entire case. Ensure your application clearly identifies a specific ground (e.g., fraud, error on the face of the record) and does not merely rehash appeal arguments. Also, confirm filing complies with Rule 12(1) – both physical and electronic copies – to avoid documents being expunged.

For businesses

Finality of land disputes

If you are involved in a land case that reaches the Supreme Court, the decision is final. A review is extremely limited and unlikely to succeed unless you have fresh evidence of fraud or a clear error. Also, ensure your legal team files all documents properly – both physical and electronic – to avoid having your submissions thrown out, which could weaken your case.

For individuals

Limited options after Supreme Court

Once the Supreme Court rules, you cannot appeal. The only way to challenge the decision is to apply for a review, but you must have a very strong reason like proof of fraud or a mistake on the face of the record. The court will not reconsider the whole case. Also, follow court filing rules strictly – missing a physical copy can get your documents removed.

Frequently asked questions

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Can I appeal a Supreme Court decision in Kenya?+

No, the Supreme Court is the highest court. You cannot appeal its decisions. However, you can apply for a review on very limited grounds, such as fraud, discovery of new evidence, or an error on the face of the record. The review is not a second appeal.

What happens if I file documents only online in Kenya's Supreme Court?+

The Supreme Court requires both physical and electronic copies under Rule 12(1) of the Supreme Court Rules, 2020. If you file only online, the documents may be expunged from the record. This happened to the 5th-9th respondents in the Sirikwa case.

What is the difference between an appeal and a review in Kenya?+

An appeal asks a higher court to change a lower court's decision. A review asks the same court to reconsider its own decision based on specific grounds like fraud, new evidence, or an error on the face of the record. You cannot use a review to re-argue the whole case.

Can I get costs if I win a Supreme Court application in Kenya?+

Yes, the Supreme Court can order the losing party to pay costs. In the Sirikwa case, the applicant was ordered to pay costs to the respondents who successfully opposed the review application. Costs are not automatic but are awarded at the court's discretion.

Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Sirikwa Squatters Group v Fanikiwa Limited & 20 others", Case Analysis (2024). Petition (Application) 32 (E036) of 2022 & Petition 35 (E038) & 36 (E039) of 2022 (Consolidated). Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2024/23/eng@2024-05-31

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.